ABA, Social Media and a time to panic?

In the book The Hitchhiker’s Guide to the Galaxy the main character faces a huge crisis. Â He discovers the Earth is about to be destroyed to make room for a hyperspatial express route. Â Fortunately, a tip and a certain guide book are able to help save his life. Â Recent events have made me wonder if I might be facing a similar crisis.

On October 28th, 2010 I received an email from Larry Bodine copied to his list-serve and most of the legal marketers in the industry. Â The subject read:

RED ALERT: The ABA wants to regulate the internet

It was basically a call to action for attorneys and legal marketers to bind together to stop the insidious threat of the ABA limiting the use of the internet for marketing and business development by attorneys.

I have a lot of respect for Larry and his efforts to organize this effort, and Larry has been effective in getting this message out. Â A LinkedIN discussion has been started, a Twitter hash tag created “#ABAREGS,” Law.com picked up the story and people’s parents have been called. Â I think Larry may have overstated the emergency though.

What is really going on here?

Basically, the ABA has put together a panel to take a hard look at online marketing in its myriad forms and provide some guidance. Â The fear is that this panel will end up regulating the use of the internet by lawyers and make it harder for the small firms to compete with the larger ones.

Don’t you think “RED ALERT” is a little sensational? Â The ABA is trying to understand what is happening online. Â It should come as no surprise that they are woefully behind in terms of understanding the technology involved with social media and the internet. Â I’m curious to see how this play out.

Rather than rely on the sensational, I prefer the reasonable. Â The message that resonated with me the most came in a comment on Heater Morse-Milligan’s blog from Doug Cornelius, active blogger, social media user and Chief Compliance Offer for Beacon Capital Partners:

I think itâ€™s useful to go back to 1999 and look at what the ABA did for email. They issued an opinion that using email could preserve client confidentiality. That opinion opened the floodgates for lawyers using email. (I looked back at my email archives and saw an enormous spike in email traffic that began in 1999.)

I agree that another layer of regulation is not going to help. But positive guidance from the ABA would be a good thing.

Thousands of lawyers are waiting in the wings afraid to use social media because they aren’t sure how to use the tools- and there is such little guidance from state bar associations and the ABA that many are simply staying away.

It is about time the ABA took look at online marketing and helped provide some assurances to so many attorneys that look to these governing bodies for advice. Â As lawyers it is our responsibility to let the ABA know our opinions on the topic. Â The ABA is accepting comments until December 15, 2010 to guide them in their decisions- feel free to make your voice heard.

Actually a link to your article as well as Scott and Antonin’s blog posts were in the first draft my post, but I decided it would distract people from the actual point of my article, so I took them out.

Thanks for the comment and the correction on the spelling of Carolyn’s name.

Adrian:
Yours is a very well-reasoned post on this topic, and I am inclined to think that the ABA’s commentary will ultimately be helpful and not limiting. Unfortunately, folks at the Florida Bar have made everyone a little sensitive on the topic of internet-related Bar restrictions, but Doug Cornelius’ observation about the 1999 email ruling is likely to foreshadow what we will see from the upcoming social media guidelines.
However, just go hedge my bets, I’m going to submit a comment. I am far down the path in coaching firms and individual lawyers on how to development business utilizing social media tools and I’d hate to see this incredible opportunity foiled.
Thanks for providing a balanced view of this issue, Adrian.
Best — Amy

The approach of the Florida bar was one of shoot first, and their mistakes have been obvious and an example to bar associations all over the country on how NOT to regulate social media. I would hope that the ABA won’t fall into the same trap.

Second: An incredibly well thought out and written blog post. I must admit that I got a bit caught up on the “Red Alert” status.

Restrictions are not the way to go. What the ABA should be looking at is the ethics of all forms of marketing and advertising and finding ways to bring them up to the 21st century. Not necessarily promulgating more rules, but finding ways to update the guidance they have “provided” (and I use the quotes purposely) with regard to 20th century marketing.

Nuanced post, Adrian. The web is full of attention grabbing headlines and bloggers lead the way. Though I loathe it, can’t blame ’em since that’s what the SEO experts tell them to do. But that’s another rant.

I think guidance from the ABA is a good thing — if they listen to their constituents and promulgate the rule(s) accordingly. It may serve as a model for the even more behind-the-times mandatory CLE regulating bodies to include positive accreditation policies for necessary marketing and social media courses in their rules and regs.

Well done post. Of course, it is the ‘uncertainty’ about what the ABA may do with its findings, and how broad they might be, that will fuel concern. Isn’t it interesting that many lawyers feel certain in the way it ‘is’ right now, but view uncertainty as ‘changing the rules’?

I do take issue with your thought that anyone is standing on the sidelines because they want more certainty about ethics regulations. I have never seen any evidence of that in blog posts, comments or otherwise. Lawyers aren’t stupid. By and large, they know they can have Facebook Pages and blogs. The ones who don’t do so for their own reasons (no time to blog), not because they are timid about whether they will be pulled aside on ethics violations (at least outside Florida :-)).

I would be interested to know “who” is sitting on the working group. If lawyers who have embraced and used these tools for the last decade aren’t adequately represented,that is a huge problem. If the working group is filled with academics, big firm types who only know what a brochure web-site looks like and others who are not on the ground, then Larry’s “Red Alert” is probably right on. Most lawyers are so ignorant about the technology, its uses and the ramifications of seeking to ‘regulate’ it. Many lawyers have an agenda and bias to the pre-internet status quo. After all, many laweyrs and firms in this country have been protected from anything resembling competition becasue there was little public information about lawyers or law firms and the legal issues they faced. The internet has been the single most pro-consumer event in the history of legal practice. Lawyer blogging has fueled that chance. The ethics of lawyer blogging, and Facebook, is easy. You can’t misrepresent, mislead or defraud consumers. The volume of information about lawyers and law firms on-line, as well as specific legal issues, makes deceptive behavior much more difficult and empowers consumers with the ultimate market protection, choice. Those that engage in fraud, get in trouble. Those that don’t provide free information to consumers which often allow them to avoid paying a lawyer anything in the first place.

If you have info on the members or a link, it would be great to share. Knowing who is making these decisions is the most important issue at this juncture. Thanks.

I don’t have the details on who is in the group, but look for Carolyn for those details, she is covering this really well.

As for lawyers waiting in the wings, I see it everyday. You would think that lawyers would realize by now that they CAN use social media and blogs without having to fear ethical discipline, but many firms (especially the big firms) aren’t yet on board with allowing their attorneys to participate on social networking sites.

You don’t see it in the blog and comments because the blog world is completely foreign to those still on the sidelines.

I checked the credentials of all of the lawyers serving on the Commission. Leaving aside the fact that only 2 are from small firms (none are completely solo), I found only one on Facebook (a private, personal profile), none on Twitter, and only two or three have blogged, not on their own but at other sites. This is an enormous problem. One reason that I created the ABAEthics2020.com portal at MyShingle is to try to get the Commission members over to the site to start playing around with social media. But I do not think it will work. BTW, I do agree that so many lawyers are afraid to engage SM because of concerns about ethics. The ABA should tell lawyers that nothing has changed, read and research the rules and if you do, you’ll be fine.

Thanks Carolyn for your comment and for your leadership on this issue. I will definitely link to http://abaethics2020.com for those looking for more information. It does seem odd that the ABA would put together a panel to decide the fate of online marketing and social media that has no experience with either one. Kind of like having a panel of biologists come up with safety standards for nuclear materials.

Would it have been so hard for them to have done a simple search to find a single panelist with some experience with the tools?

Thanks again for your comment, and it was great meeting you IRL at the “Case for Social Media” event last month.

[…] Basically, the ABA has put together a panel to take a hard look at online marketing in its myriad forms and provide some guidance. Â The fear is that this panel will end up regulating the use of the internet by lawyers and make it harder for the small firms to compete with the larger ones. Do you think this is a â€œRED ALERTâ€ moment?Â Adrian Dayton has more at ABA, Social Media and a time to panic? […]

One thing that sticks out is “guidance.” Lawyers are looking for guidance from the ABA, not more rules or amended rules. Carolyn Elefant held an informative teleseminar last week that reviewed the ABA Ethics 20/20 Commission and the 2 white papers that started this whole “Red Alert” business. A recording is posted to MyShingle.com and is worth a listen.

Social media and blogging has been overrun by the early adopters, and there seems to be a great deal of shouting to be heard on one such or another. The early adopters, too, are lawyers as well as legal consultants. As much as I find the ABA to be 20 years behind anything, it is encouraging that they are making an effort to better understand the environment instead of just handing down new rules. They want feedback, and every solo and small firm lawyer should provide it. If anything, it is lack of promotion of discussion of the issues that is the most threatening. Part of that, again, is the shouting match which causes things to get lost or overlooked.

There have been a few posts about the ABA Ethics 20/20 Commission and their white papers raising issues for social media, cloud-computing and Internet use in general, so take a minute to review them, the white papers and/or listen to Carolyn’s teleseminar. This is your opportunity to step up and out of the shadows, and provide some much needed guidance to the ABA and, eventually, other lawyers.

I’m in favor of Best Practices instead of new or amended rules, by the way. Social media, blogging and the Internet is general are fluid mediums, so rules will quickly be outdated where as Best Practices can more easily be updated.

I like the idea of best practices, i think that is the kind of guidance that I had in mind as well.

While the ABA may have made some mistakes when it comes to technology in the past, I believe they have a substantial incentive to get it right this time. Hopefully everybody’s comments will be helpful in getting there.

I think the states should stay away from regulating lawyer advertising and focus their efforts on enforcement of FTC rules. A lot of time is spent by people who know little to nothing about advertising and marketing and not much about personal injury to create rules restricting what personal injury lawyers can do with their advertising and marketing. This results in rules which often are confusing; unconstitutional; easy to get around; adversely affects non-targeted lawyers such as corporate lawyers; and are rarely enforced.

The FTC rules are excellent well thought out rules which adequately protect the public from unscrupulous advertising. The only problem with FTC rules is also inadequate enforcement.

[…] about new ethics considerations, I juxtapose MCLE in the conversation, which explains my comment on Adrian Dayton’s post: I think guidance from the ABA is a good thing â€” if they listen to their constituents and […]

By Conrad Saam on the AVVO Blog: “The State Bars should get out of the business of regulating marketing because it is something they know nothing about.” – Larry Bodine That jolted me out of my seat at the MyLegal……

I agree with Amy Knapp. The lack of careful or deliberate accumulation of information, data and evaluation of marketing led the Florida Bar and the Florida Supreme Court down a frightening, ill informed path. If the ABA does not rush the process; does not listen too intently to those simply ignorant of or fearful of the internet; and if the ABA comes to understand that the internet is more of a marketing tool as opposed to an advertising tool, they may release good guidance. Regulating beyond a general standard of truthful and non-deceptive is over regulation given the already existing general guidelines.

Let me start off by saying I’m not an attorney and that I respect Larry Bodine, Adrian Dayton and Carolyn Elefant. In fact, all three were speakers at our recent conference, “The Case for Social Media: Managing Your Online Presence to Build your Law Practice.” I don’t think Larry’s choice of words was inappropriate. In my opinion, it clearly achieved the objective of getting people to stand up and take notice and let their voices be heard.
I do agree with Jaimie, Tim and Gwynne that guidance from the ABA in the form of Best Practices may be the best approach if the ABA listens to their constituents. Like Adrian, I see many lawyers waiting in the wings and spectating every single day for a variety of reasons, but one of which, I believe, is fear of ethical discipline. So I think the time is right for the ABA to look at this issue more closely.

Pasted below is an article I wrote in response to Larry Bodine’s “Red Alert” blog. I don’t think the ABA is the enemy. In fact, I think they’ve been gradually been moving in the right direction, loosening up the restrictions over time. It’s states like NY and Florida that are the real problem. I think we should support the ABA, and encourage more states to adopt the more reasonable Model Rules.

Much of this debate boils down to one issue: The MEDIUM isn’t the issue. The CONTENT is. It’s not about WHERE something is posted (internet or magazine); it’s what it SAYS.

In summary, the issue is whether the communication “beckons business.” If it does, the government can regulate it as commercial speech. If it doesn’t then the government can’t touch it. So can the government regulate a tweet? Sure, but only if it beckons business – just as it can if the same communication were in a print ad, brochure, or TV commercial. See what you think, pasted below.
Ross

Excellent article, I think this is one of the best on the “Red Alert” subject. This whole concept of “beckons business” is an important one, and not one that many people understand. I also like what you had to say about executives and in-house counsel needing protection- the rules weren’t set up to protect them. They are mostly ambulance chaser regulations to protect the uneducated from manipulation by attorneys.

I hope you don’t mind I inserted the LINK to the JD supra article instead of your whole article so that people could share the source with others.

I agree with Amy Knapp. The lack of careful or deliberate accumulation of information, data and evaluation of marketing led the Florida Bar and the Florida Supreme Court down a frightening, ill informed path. If the ABA does not rush the process; does not listen too intently to those simply ignorant of or fearful of the internet; and if the ABA comes to understand that the internet is more of a marketing tool as opposed to an advertising tool, they may release good guidance. Regulating beyond a general standard of truthful and non-deceptive is over regulation given the already existing general guidelines.

[…] to the Commissionâ€™s recent proposal and report, lawyers are almost certain to avoid any new draconian restrictions on social media activity as were feared by some. We do, however, expect to see some clarifications that should make ethical conduct for lawyers […]